1. ' MUJEEBULLAH SIDDIQUI (CHAIRMAN).--- There is office objection that the appellant has preferred this appeal before Tribunal without filing the departmental appeal and therefore the appeal is not competent by virtue of the provisions contained in section 4 proviso (a) of the Sindh Service Tribunal Act, 1973, which is reproduced as under:---
(a) Where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973 (LXXI of 1973), or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred.
2. ' The matter was partly heard on 4-7-2013. The order dated 4-7-2013 is reproduced below:--- ' Mr. Muhammad Nawaz Shaikh learned Advocate for the appellant has argued at some length on the point of maintainability of the appeal without filing departmental appeal/ representation. He has placed reliance on the judgment of Hon'ble Supreme Court in the case of WAPDA v. Fida Hussain 2004 SCM R 1439. In the said judgment an earlier judgment of Hon'ble Supreme Court dated 30-5-2001 in the case of Mr. Muhammad Mushtaq Akbar Abbasi v. House Building Finance Corporation and others, Civil Appeal No,947 of 1999 (unreported) has been referred wherein, it has been observed as follows:--- "The same could be treated to be a departmental appeal against the order of compulsory retirement when the respondent in Constitutional petition has opposed the petition that compulsory retirement order was legally passed, the said objections/ comments could legitimately be deemed to be an order of competent authority on the appeal of dismissal, therefore, there was no legal impediment in filing the appeal before the Service Tribunal on account of non-availing of departmental remedy"
3. ' Mr. Muhammad Nawaz Shaikh, learned counsel for the appellant has submitted that the present appellant also filed C.P. No,2481 of 2011 which was dismissed by Circuit Court of High Court of Sindh at Larkana by order dated 24-11-2011, which reads as under:--- "Mr. Asif Ali Abdul Razak Soomro, learned counsel for the petitioner states that this petition is not maintainable because remedy lies before the Service Tribunal. This position is conceded by the learned Addl. A.-G, consequently, this petition is dismissed as not maintainable"
4. ' Mr. Muhammad Nawaz Shaikh has submitted that it is not clear from the above said order whether any comments/objections were filed by the departmental authorities before the Hon'ble High Court of Sindh Circuit Court. Larkana opposing maintainability of the above petitions on law as well as the facts.
5. ' He sought time to make the inquiry into the facts, whether any comments/objections were filed by the respondents in the C.P and if so he shall produce certified copies of the comments before this Tribunal to examine whether the facts in the present case are similar to the facts of the unreported judgment of Hon'ble Supreme Court in the case of Muhammad Mushtaq Akbar Abbasi supra.
6. ' The two judgments of the apex Court on which Mr. Muhammad Nawaz Shaikh has placed reliance have been considered by us. The law laid down in the case of WAPDA v. Fida Hussain 2004 SCM R 1439 is not attracted to the facts of the present case for two reasons, first, it was observed that the action of the respondent in the cited case was taken under section 17(1-A)(a) of WAPDA Act, 1958 where under no provision for filing of appeal, review or representation was provided and the action of retirement was not initiated or taken under Pakistan WAPDA Employees (Efficiency and Disciplinary) Rules, 1978, therefore in the circumstances of non-filing of appeal would be no bar from filing of appeal before Federal Service Tribunal. Secondly, it was observed that the respondents had filed appeal and was informed that the order so passed was final. Thus on facts it was found in the cited case that appeal was actually filed which was dismissed. On the legal plane it was held, that, when under any law in pursuance whereof any penalty is imposed on civil servant and the said law does not contain any provision for filing of appeal, review or representation then question of filing of review, appeal or representation does not arise. Thus on facts as well as law the Judgment of the honourable Supreme Court is distinguishable from the facts in the present appeal. Consequently the dictum laid down in the cited Judgment is not attracted.
7. Mr. Muhammad Nawaz Shaikh has further placed reliance on the unreported Judgment referred to in the case of WAPDA v. Fida Hussain. The ratio of the judgment in this case was considered on the last date of hearing. In the unreported judgment the honourable Supreme Court found that the Constitutional Petition was filed in which comments/objections were filed on behalf of Government officials/ respondents and the said objections/comments could be deemed as order of the competent authority on the appeal of dismissal. In order to ascertain whether in the case of present appellant any objections/ comments were filed before the Sindh High Court Circuit Bench Larkana and Mr. Muhammad Nawaz Shaikh has informed that no comments/objections were filed by the respondents in the petition and the petition was dismissed in limine on the point of jurisdiction. The law of precedent is not to be applied without properly considering the facts and law. In those cases only law of precedent shall be attracted where in the precedent case and the subsequent case under consideration the facts and law are similar. If the facts and law are not similar then law of precedent shall not be attracted, unless a general principle of law is laid down, such as, no person shall be condemned unheard.
8. ' The contention of Mr. Muhammad Nawaz Shaikh that the honourable Supreme Court has held, in the two cases on which he has placed reliance, that the Tribunal can entertain appeal without filing of departmental appeal is not tenable. The relevant facts and circumstances in the cited judgment have already been referred earlier. Even at the cost of repetition I would like to observe that in the case of WAPDA v. Fida Hussain (supra) there was no provision of filing of appeal, review or representation and, therefore, there was no question of filing of any such appeal, review or representation. Inspite of that the respondents in the cited case had filed the appeal which was dismissed. In the unreported judgment the facts were that the objections/comments were filed by the official respondents, thereby, disclosing their mind that whatever order has been passed was supported by them and consequently it would then be an exercise in futility to file any appeal before the same respondents who have already disclosed their mind. In these peculiar circumstances the comments/objections were treated as final order on departmental appeal. As already observed in the present appeal no comments/ objections were filed and thus the ratio of the unreported judgment of the honourable Supreme Court is not attracted. For the foregoing reasons we find that the appeal preferred before this Tribunal without recourse to the departmental appeal as required under section 4 proviso (a) of the Sindh Service Tribunal Act, 1973 is not maintainable.
9. ' Mr. Muhammad Nawaz Shaikh has sought indulgence from this Tribunal by submitting that the appellant had submitted a representation before the Secretary Food, Government of Sindh Food Department Karachi on 10-7-2011. He has contended that this representation may be deemed to be an appeal/representation made to the Secretary Government of Sindh Food Department. The said representation was made before issuance of impugned order, therefore, technically speaking the request is not tenable but Mr. Muhammad Nawaz Shaikh has submitted that a valuable right of the appellant is involved, therefore a lenient view may be taken and the appellant may not be knocked out, on the ground of procedural technicalities. A specific provision of law which is particularly in negative terms is mandatory, therefore, we do not agree that it is merely a technical ground on which the appeal is being held as not maintainable. It is on account of non-compliance of mandatory requirement of law. However, taking a lenient view and adhering to the principle that Courts should try to provide remedy to the litigants, as far as possible without violating the law, we are inclined to agree with the submission of Mr. Muhammad Nawaz Sheikh that the representation which is on the same point as agitated in the appeal may be treated as a representation/departmental appeal. The departmental authority is directed that the representation dated 16-7-2011 by the appellant be treated as a representation/departmental appeal against his retirement, on the point of determination of his date of birth.
10. ' The Secretary to Government of Sindh Food Department Karachi is directed to give personal hearing to the appellant and decide the representation/departmental appeal as soon as possible.
11. If the departmental appeal is decided against the appellant or it remains undecided after elapse of 90 days of the communication of this order the appellant shall be at liberty to file fresh appeal before this Tribunal, if so advised.